(273 F.) of his profession in good faith, or whether he was engaged in handling them as merchandise. 1. Poisons 4-That persons to whom narcotics were sold were registered as addicts under state law no defense to prosecution under federal statute. In the prosecution of a physician for sale of narcotics in violation of Harrison Narcotic Act, § 2 (Comp. St. § 6287g), exclusion of evidence to show that the persons to whom defendant sold drugs were registered as addicts under the New York state law held not error. In Error to the District Court of the United States for the Southern District of New York. Criminal prosecution by the United States against Daniel J. Hoyt. Judgment of conviction, and defendant brings error. Affirmed. See, also, 255 Fed. 927. Campbell, Flaherty, Turner & Strouse, of New York City (Thomas G. Flaherty, of New York City, of counsel), for plaintiff in error. Francis G. Caffey, U. S. Atty., of New York City (Peter B. Olney, Jr., Asst. U. S. Atty., of New York City, of counsel), for the United States. Before ROGERS, HOUGH, and MANTON, Circuit Judges. ROGERS, Circuit Judge. The defendant was tried upon four indictments, two of which were filed on October 3, 1917, one was filed on October 15, 1919, and the fourth on March 1, 1920. On March 10, 1920, all four indictments were by order of the court consolidated. The trial began on May 3, 1920, and was concluded on May 13. In the course of the trial counts 5, 8, 9, 10, 11, 12, 13, and 14 were dismissed. The indictments charged a violation of the Act of December 17, 1914, as amended by the Act of February 24, 1919. The act is what is known as the Harrison Narcotic Drug Act (Comp. St. §§ 6287g-6287q). The defendant was convicted on each of 13 separate counts, and was sentenced to four years' imprisonment in the United States Penitentiary at Atlanta, the sentences to run concurrently on each of the counts upon which he was convicted. This court again takes occasion to express its decided disapproval of allowing a long delay to intervene between the finding of indictments and the time of trial. There cannot be efficient administration of criminal law, if long delays occur between indictments and trials. We feel that this cannot be too strongly expressed. Those of us who have any part in administering criminal law are under the most serious obligation to prevent unnecessary delays in the prompt trial of all accused persons. This is due alike to society and to persons accused. The long delays which have occurred in this case are to be justified only by very extraordinary circumstances, which, if they exist, are not disclosed by anything which appears in the record, nor by any satisfactory statement at the argument. It was said that delay was occasioned by doubt concerning the constitutionality of the act, and a decision of the Supreme Court was expected and awaited. But the first indictment, as previously stated, was found in October, 1917, and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the case in which the Supreme Court passed upon the constitutionality of the law had not at that time, and not until long after, and in January, 1919, been submitted to that court. United States v. Doremus, 249 U. S. 86, 39 Sup. Ct. 214, 63 L. Ed. 493. Then it was decided as early as March 3, 1919; but even that decision does not appear to have expedited the trial, as a whole year elapsed thereafter before the case was called for trial. It should also be added that, if doubt existed as to the validity of the statute upon which the indictment was based, that was in our opinion not a reason for delaying the trial, but for hastening it to a conclusion, as no man should be allowed long to remain under the cloud of a possibly invalid indictment while courts exist in which the question can be determined. It is written into the Constitution (article 6) that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial," and it is the duty of the sworn officers of the law to govern themselves accordingly. A dilatory administration of the criminal law not alone violates the rights of accused persons, but is also discreditable to the country and prejudicial to the protection of life and property.1 1 Since the filing of this opinion the United States attorney for the Southern district of New York has submitted to the court an extended statement of the history of the case and an explanation of how it happened that trial was so long delayed. The concluding portions of his statement are so important that it is due to him, although he has not requested it, and also due to the efficient administration of justice in the Southern district of New York, that they be stated in connection with the criticism which we have passed upon the delay which occurred in this case. The concluding portions of his statement follow: "In the fiscal years 1917 to 1920, inclusive, and the 11 months of the present fiscal year between July 1, 1920, and May 31, 1921, the government cases in the District Court for the Southern District of New York and their disposition were as follows: "It is impossible to correct the congestion on the court dockets until more [District] Judges are available. It would require three judges, sitting continuously, to dispose of the government's criminal cases. There are now untried enough pending prosecutions under the mail fraud statute alone to occupy the full time of one judge for a year. "Moreover, since I assumed my duties in June, 1917, there has been an enormous increase in the importance of the government's civil litigation in this district. While I am unable at the moment to state the sum involved in 1917, the civil cases (exclusive of admiralty) which have been pending and are still pending this year involve nearly $70,000,000. In 1917 only a fraction of the time of one assistant was required for all the admiralty work in this district. To-day, there are on the dockets of the District Court here about 1,200 government admiralty cases, involving about $40,000,000. "The liquor business handled is another illustration. During the current fiscal year upwards of 4,500 persons have been brought to this office charged with criminal violation of the Volstead Act. By March 31st, 1,724 of these had been released after investigation and prosecutions had been instituted against 2,628 (combined into 1,749 cases). In addition, during the present fiscal year, 734 injunction suits have been commenced under the nuisance (273 F.) The material portions of section 2 of the Harrison Act are as follows: "That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. Nothing contained in this section shall apply-(a) To dispensing or distribution of any of the aforesaid drugs to a patient by a physician, dentist, or veterinary surgeon registered under this act in the course of his professional practice only: Provided, that such physician, dentist, or veterinary surgeon shall keep a record of all such drugs dispensed or distributed, showing the amount dispensed or distributed, the date, and the name and address of the patient to whom such drugs are dispensed or distributed, except such as may be dispensed or distributed to a patient upon whom such physician, dentist or veterinary surgeon shall personally attend; and such record shall be kept for a period of two years from the date of dispensing or distributing such drugs, subject to inspection, as provided in this act." Comp. St. § 6287h. The defendant was engaged in the practice of medicine in the city of New York and was registered with the collector of internal revenue of the United States as a dealer in and dispenser of opium and coca. leaves and their. salts, derivatives, and their compounds. He had made, according to his testimony, some special study of drug addiction, and maintained a small sanitarium for drug addicts, into which he received for treatment in the course of four years only 38 patients, although during the same period he dispensed narcotics to from 1,000 to 1,500 addicts. He admitted upon the stand that in February, 1920, persons to the number of 80 were coming to him for narcotics in a single day. The testimony was that the addicts paid him $1 for a day's supply of the drug and $3 for three days' supply. In his dealings with patients the payments were all cash transactions. The following is from his cross-examination: "These addicts paid you $1, $2, $3, sometimes $4, sometimes $5, sometimes nothing; is that correct? A. Yes, sir." In the year from February 1, 1919, to February 1, 1920, he dispensed 95,175 grains of heroin and 53,779 grains of morphine. A number of those who had been furnished with the drug by him testified at the trial. One addict began getting heroin from him in January, 1916. and continued receiving it to August 10, 1917, and from July 26, 1918 to February 3, 1920; during these periods it appeared that the defendant was furnishing the drug without any substantial reduction in section of the Volstead Act (41 Stat. 305), 483 injunctions have been granted, 20 contempt proceedings for the violation of injunctions have been instituted, 6 contempt cases have been tried, numerous proceedings have been instituted for the destruction or other disposition of seized liquors (of which, as I am informed, there are stored in this district quantities of the value of upwards of $2,000,000), and numerous suits, have been brought against government officials seeking the recovery of seized liquors. Congress appropriated nothing to the Department of Justice for the enforcement of the Volstead Act this year, and all the work under the liquor laws has been carried on by my regular force. "These facts indicate the problem of this office in the endeavor to keep its work current." amount and without any cure being effected. Another procured heroin from the defendant from June 20, 1916, to August 14, 1917, and again from June 26, 1918, to February 3, 1920, and in this case, also, there was no substantial reduction in the amount of the drug, and no cure was effected. The defendant admitted that an addict could not be taken off the drug by the sole method of the drug being given to him to administer to himself; that is, by what is known as the ambulatory method. He admitted that, to take him off the drug, it was essential that the addict should be put under absolute control. Nevertheless he was for long periods of time and for self-administration furnishing the drug to large numbers of persons over whom he had no control. There is abundant evidence in the record from which a jury might conclude that he was engaged in carrying on a mercantile business in selling narcotics, and was dispensing the drugs wholly outside of what under any theory of medicine could have been denominated professional practice only. There are 29 assignments of error, but all except 4 were abandoned at the argument in this court. Those relied upon are as follows: (1) That the evidence did not sustain the allegations of the indictments and did not show that the defendant had been guilty of any offense against the laws and statutes of the United States. (2) The refusal of the court to permit defendant's counsel to ascertain whether or not any of the jurors had preconceived ideas as to the treatment of drug addicts. (3) The refusal of the court to strike out testimony showing the quantities of narcotics purchased by the defendant after the court had dismissed the indictment charging the defendant with purchasing drugs for use not in the course of his practice. (4) The refusal of the court to permit the defendant to bring out facts and the law in relation to the registration of addicts under the New York state law. We shall consider them in the above order. As respects the first of the errors assigned, if the evidence did not sustain the allegations of the indictment and did not show that defendant was guilty of any offense against the act, then the court was plainly in error in denying the motions to take the case from the jury. The motion for a dismissal of the indictment and for the direction of a verdict was upon the following grounds: (1) That there was no proof that through the alleged misconduct of the defendant the government failed to collect all the taxes it was entitled to. (2) That the defendant's method of treatment of drug addiction was in itself wrongfully made the main issue in the case; that the defendant, as a physician, was entitled under the law himself to judge as to what narcotics should be dispensed to patients, without a review of his decision by a jury. (3) That the proof by the government's expert witness failed to disclose that there was any well-recognized method of successful treatment of drug addiction. [1] It is true that there is no proof in the record that the government has failed to secure full revenue for all narcotics dispensed by defendant. But the defendant was not charged in the indictment with having defrauded the United States out of any revenue, and to sustain the conviction it is not necessary to show that the government has been (273 F.) defrauded. It is true that the Harrison Act purports to be passed under the authority given to Congress under article 1, section 8, of the Constitution, which empowers it to lay and collect taxes, duties, imposts and excises. The raising of revenue is not, however, the sole purpose of the act. The statute has a moral as well as a revenue end in view. The revenue end is provided for in section 1 and the moral end in section 2. The fact that the motive which impelled Congress to enact section 1 differed from the motive which led it to adopt section 2 is immaterial, if it can be seen that the legislation enacted has some reasonable relation to the exercise of the taxing power given to Congress by the Constitution. That it has such a relation has been decided, and is not now open to question in this court. United States v. Dorenus, 249 U. S. 86, 36 Sup. Ct. 214, 63 L. Ed. 493. Το sustain a conviction for a violation of section 2, it is no more necessary to show a violation of section 1 than it would be necessary to show a violation of section 2 to sustain a conviction for a violation of section 1. It cannot be seriously contended that any other conclusion is possible. [2] It may be true that a physician's method of treatment of drug addiction is a question to be determined by the physician himself, and not by a jury; but it can only be true so long as the physician is pursuing his method in his honest endeavor to effect a cure. If that is not his purpose, and he is dispensing the drug to keep the addict comfortable, he is violating the law, and whether he is doing the one thing or the other is a question the jury must decide. Webb v. United States, 249 U. S. 96, 39 Sup. Ct. 217, 63 L. Ed. 497. [3] Then it is claimed that there is an absence of proof of what a physician might properly do in the course of his professional practice in treating drug addiction. There is no foundation upon which such a claim can rest. The evidence, if the jury believed it, justified the conclusion that the defendant was really engaged, and practically exclusively engaged, in the sale of drugs to addicts, and not in the practice of medicine for the cure of drug addiction. The statement as to the testimony already made clearly shows that, and it need not be enlarged upon in this connection. It is also asserted that the government failed to prove that there is any method for the successful treatment of addicts, and, if there is, in what it consists. We think the defendant's own testimony on the subject of a cure is sufficient, in itself and without more, to justify the verdict of the jury. The government, however, called to the stand as an expert witness a member of the staff of Bellevue Hospital in New York City, who had made a study of narcotic drug addiction, and who had treated thousands of such cases, and who testified fully on the subject. He testified that drug addiction cannot be cured, except by putting a person into an institution where he cannot get the drug; that that course is absolutely necessary. "Drug addicts themselves will tell you that, as long as they are out where they can get the drug, walking around, why, they will get it." His testimony was that in institutions heroin is never given, and that in cases where the gradual withdrawal method is pursued at patient is given as a rule one or two grains of morphine for a day, and |